In 1904, a man filed a lawsuit against the Houston & Texas Central Railroad Company claiming that the well on the railroad company’s land had depleted the water from his personal well. The case was known as “Houston & Texas Central Railroad Company v. East”.
The railroad company drilled a 20-foot-wide, 66-foot-deep well on its property to power train engines and supply water for its machine shops in Denison, Texas. The company was pumping about 25,000 gallons of water daily, causing East’s well to dry up. East’s personal household well was only 5 feet wide in diameter and 33 feet deep. The Texas Supreme Court ruled in favor of the railroad company, stating that under Texas groundwater law, the owner of land can pump as much water as needed, even if it negatively affects the water supply of neighboring wells. And thus, the “Rule of Capture” was established.
In 1949, legislation set up the first local conservation districts with the intent to conserve groundwater and monitor its use by landowners.
What is the “Rule of Capture”?
You’ve probably heard the saying, “Everything’s bigger in Texas.” Consequently, the bigger the well a landowner drills, the larger the amount of water they can pump. The “Rule of Capture” allows landowners to pump as much groundwater from their land as they need, even if this results in the wells of their neighbors drying up. Some even refer to Texas groundwater law as the “law of the biggest pump.” However, there are some exceptions, such as common law limitations, to the Rule of Capture.
A landowner may not:
- Maliciously pump water with the intent to hurt a neighbor.
- Deliberately waste groundwater.
- Negligently drill or pump water causing a decrease in a neighbor’s supply.
- Pump water from a contaminated well.
- Trespass onto someone’s land and pump groundwater.
Groundwater Conservation Districts
In 1917, the Conservation Amendment was passed, giving the Texas Legislature the commitment to preserve and conserve natural resources in the state. Local Groundwater Conservation Districts (GCDs) were created to regulate the drilling and pumping of groundwater. Additionally, the districts attend to the “recharging and prevention of waste of groundwater” and “control subsidence.”
Texas Water Code Section 36.0015 states, “(b) … Groundwater conservation districts created as provided by this chapter are the state’s preferred method of groundwater management in order to protect property rights, balance the conservation and development of groundwater to meet the needs of this state and use the best available science in the conservation and development of groundwater through rules developed, adopted and promulgated by a district in accordance with the provisions of this chapter.”
According to the Texas Commission on Environmental Quality (TCEQ), there are four ways a GCD can be developed:
- First, it can be formed through a legislative process that gives the district its powers and duties, appoints temporary directors and establishes procedures for future director’s elections.
- Second, property owners can file a petition within the proposed district’s area to be considered by the TCEQ; the proposed GCD will be evaluated on how effectively it can manage the district’s groundwater resources and whether there are enough funds for this to occur.
- Third, the TCEQ can move to create a GCD via a Priority Groundwater Management Area (PGMA); this method is utilized when local actions have not been taken to create a GCD after being designated a PGMA.
- Finally, an alternative is to add territory to an existing GCD; a landowner can take a petition directly to the board of directors, where the board will decide whether to include the territory in its district.
The three principal duties of a GCD are to provide water well permits, develop a management plan and agree on the necessary rules to enforce said plan. To prevent groundwater waste, a GCD can require that all wells, with some exceptions, be registered and permitted. The GCD can implement rules over the spacing, production, drilling, equipping and completion or alteration of wells.
We Are Here to Help
The lawyers of McAllen’s Fryer & Hansen, PLLC can give you an overview of your water rights according to your unique circumstances. Additionally, we can give you in-depth information about your right to capture the water beneath your land and which Groundwater Conservation Districts are located in your area. Call our office at 956.686.6606 for your free consultation.